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TMI Blog2019 (4) TMI 1513X X X X Extracts X X X X X X X X Extracts X X X X ..... apital gain have been determined by the learned Assessing Officer) in the hands of the appellant inspite of provened assessment records of the Income Tax as well as of Wealth Tax of the previous year's assessment of M/s Raj Nath Seth (HUF) where the impugned property in past had consistently been assessed in the status of Hindu Undivided Family (HUF). 2). That the Hon'ble Commissioner of Income Tax (Appeals) has erred in law as much as on the facts of the case in not appreciating that although on the sale deed of the impugned property was signed by the appellant along with his two brothers as Vendors of the Vendee but in fact since all the three coparceners of the said HUF had signed the sale deed as "Confirming Parties" to the sale since they all are not the owners of the impugned property but they were coparceners of the HUF and the property was owned by M/s Raj Nath Seth (HUF). These facts were neither believed by the learned Assessing Officer nor by the Hon'ble Commissioner of Income Tax (Appeals) and these are arbitrarily rejected by both of them without giving any reasons and without any tangible materials on record to controvert the submissions of the appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... u/s. 80C of the IT Act of Rs. 6006/-. In the assessment proceedings, it was noticed that the assessee had sold a property No. 2689 to 2693, Baradari, Sher Afgan, Ballimaran, Delhi for consideration of Rs. 12,00,000/-. Information was received through AIR. The assessee was asked to file complete details of the property purchased and sold and if any capital gain accrued to him. The assessee filed a letter dated 12.10.2011 enclosing copy of sale deed dated 22.07.2008. On perusal of the sale deed, the Assessing Officer noticed that there were three other vendors, namely, Sh. Pramod Kumar Seth, Sh. Vivek Seth and Smt. Sarala Seth. It was also noticed by the Assessing Officer that circle rate of property was determined at Rs. 48,66,500/- for the purpose of stamp duty. 2.1. The AR of the assessee submitted before the Assessing Officer vide letter dated 12.10.2011 that the property was sold by M/s. Rajnath Seth (HUF), PANAAAHR5908Q for sale consideration of Rs. 12,00,000/-. Further, the assessee was asked to prove with documentary evidence that the property in question belonged to Rajnath & Sons (HUF). In response, the assessee filed copy of assessment orders, W.T. returns in support of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessed in the hands of M/s. Rajnath Seth HUF. He also referred to the assessment orders framed by the Assessing Officer in which the income from said property has been considered as income of the said HUF. Therefore, the property should also be considered in the ownership of the HUF. The sale consideration received is also income from the said property. Therefore, this income is also the part of the income of the HUF. The Assessing Officer has, therefore, wrongly calculated the capital gain in the hands of the assessee. The AR of the assessee also filed a paper book containing 122 pages. 4. On the other hand, the ld. DR relied on the orders of the authorities below and submitted that the assessee was unable to prove with cogent material that the ownership of the property in question was vested in the name of HUF. Merely because the income is considered in the hands of HUF, would not go to transfer the ownership of the property. The sale deed nowhere shows the HUF as owner of the property, but the impugned property has been shown to have been sold by four co-owners thereof including the assessee. 5. After hearing both the parties and perusing the entire material available on reco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Rs. 29,51,900/- as determined by the DVO on the basis of land and building method. The appellant objected that the fair market value of the property has not been determined and the fact that the property was on rent has not been considered. 4.3 The perusal of the facts as brought out by the Assessing Officer and by the appellant, as well as the documents filed by the appellant reveals the following : * The sale deed has been signed by two brothers (s/o of Sh. R.N. Seth) and the son and widow of the third brother, as individuals. * There is no reference in the sale deed that the property was HUF property or that the signatories were acting on behalf of the HUF. * The sale proceeds of the property have been deposited by the individuals in their separate individual bank accounts. * The appellant has not filed the return of Sh. Rajnath Seth FIUF showing sale/ capital gains from the alleged property * The appellant has filed copies of wealth tax record of Sh. Rajnath Seth HUF for assessment year 1978-79, 79-80, 80-81, 81-82, 82-83. These wealth tax returns have been signed by Sh. A.K Seth, though the returns are in the name of Sh. Rajnath Seth (HUF). It is important that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Rajnath Seth HUF prior to 2008-Qp.Thus the claim of the appellant that this property is HUF property is not supported by evidence. The appellant's claim of the property being HUF property thus clearly is an afterthought for the purpose of which evidence has been concocted There is thus enough material to raise a very strong suspicion, to question the authenticity of the claim of the appellant and reject the paper trail created by the appellant and require it to show that the transaction is really one which is above board which the appellant has failed to prove. "Hon'ble Supreme Court in the case of Sumiti Dayal 214 ITR 801 has held that the genuineness of the transaction is to be considered on the basis of surrounding circumstances, human probabilities and the conduct of the connected parties. A transaction does not become genuine merely because a paper trail has been created/filed. The AO while exercising his power as an investigating officer has a right to go beyond what is apparent. The mere filing of affidavit, gift deed etc shall not make the gift genuine. Hon'ble Supreme Court in the case of Sumiti Dayal (Supra) signifies that what is apparent must be examined on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncluding the assessee had transferred their asset and therefore, the capital gain, whatsoever, earned of his share, shall be taxable in the hands of the assessee. No cogent evidence is placed on record to establish that the ownership of the impugned property vested with the said HUF. Once, there is complete lack of evidence of ownership of property in the name of HUF, there is no need to prove the partition of HUF as per section 171 of the IT Act and as such the plea of assessee in this regard does not hold good. The ld. AR of the assessee could not be able to discard the findings reached by the ld. CIT(A) in the impugned order. We, therefore, are not inclined to interfere with the impugned order. Accordingly, the appeal of the assessee deserves to be dismissed.
7. As already mentioned, the facts and issue in appeal of other assessee Sh. Pramod Kumar Seth (ITA No. 5318/Del/2013) are identical, our above decision in appeal of Sh. Ajay Kumar Seth shall, therefore, apply mutatis mutandis in appeal of Sh. Pramod Kumar Seth too. Accordingly, this appeal also fails and is dismissed.
8. In the result, both the appeals are dismissed.
Order pronounced in the open court on 23.04.2019 X X X X Extracts X X X X X X X X Extracts X X X X
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